Highlighting Recent Federal Evidence Cases and Developments

Lower Court Division On The Collection Of DNA Samples From Arrestees

For the upcoming Supreme Court oral argument on whether the Fourth Amendment allows the government to "collect and analyze DNA from people arrested and charged with serious crimes," in Maryland v. King (No. 12-207) (Nov. 9, 2012), as further background on this issue, we highlight the division among some of the federal and state courts on this issue

We recently noted, the Supreme Court has set oral argument for February 26, 2013 in Maryland v. King, No. 12-207 (Nov. 9, 2012).

The federal government and most states have enacted statutes which provide for the collection of DNA (deoxyribonucleic acid) of arrestees for certain offenses. Some examples include:

Federal: 42 U.S.C. § 14135a(a)(1)(A) (authorizing the Attorney General to “collect DNA samples from individuals who are arrested, facing charges, or convicted”); see also 28 C.F.R. § 28.12(b) ("Any agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States."); 73 Fed. Reg. 74932 (Dec. 10, 2008) (amending regulation); see also 42 U.S.C. § 14132(a) (index to facilitate law enforcement exchange of DNA identification information).

Alaska: Alaska Stat. § 44.41.035(b) ("The Department of Public Safety shall collect for inclusion into the DNA registration system a blood sample, oral sample, or both, from ... a person arrested for a crime against a person or a felony under AS 11 or AS 28.35, or a law or ordinance with elements similar to a crime against a person or a felony under AS 11 or AS 28.35.")

Arizona: Arizona Rev. Stat. § 13-610(K) ("If a person is arrested for" certain offenses "and is transferred by the arresting authority to a state, county or local law enforcement agency or jail, the arresting authority or its designee shall secure a sufficient sample of buccal cells or other bodily substances for deoxyribonucleic acid testing and extraction from the person for the purpose of determining identification characteristics.")

California: Cal. Penal Code § 296(2)(C) (as of January 1, 2009, requiring the collectin of a DNA sample for "any adult person arrested or charged with any felony offense"); see also California Penal Code Section 296.1(a)(1) ("Collection from any adult person following arrest for [certain] felony offense[s]")

Colorado: Colorado Rev. Stat. § 16-23-103(1)(a) ("[C]ollection of a biological substance sample for testing to determine the genetic markers" applies to "Every adult arrested on or after September 30, 2010, for a felony offense or for the investigation of a felony offense. The arresting law enforcement agency shall collect the biological substance sample from the arrested person as part of the booking process.")

Connecticut: Conn. Gen. Stat. Ann § 54-102g(a) ("Whenever any person is arrested on or after October 1, 2011, for the commission of a serious felony and, prior to such arrest, has been convicted of a felony but has not submitted to the taking of a blood or other biological sample for DNA (deoxyribonucleic acid) analysis pursuant to this section, the law enforcement agency that arrested such person shall, as available resources allow, require such person to submit to the taking of a blood or other biological sample for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.")

Florida: Florida Stat. § 943.325(1)(a) ("it is in the best interests of the citizens of this state to establish a statewide DNA database containing DNA samples submitted by persons convicted of or arrested for felony offenses and convicted of certain misdemeanor offenses")

Illinois: 730 Ill. Rev. Stat. Ch. 5, Para. 5-4-3(a-3.2) ("On or after January 1, 2012 (the effective date of Public Act 97-383), any person arrested for any of the following offenses, after an indictment has been returned by a grand jury, or following a hearing pursuant to Section 109-3 of the Code of Criminal Procedure of 1963 and a judge finds there is probable cause to believe the arrestee has committed one of the designated offenses, or an arrestee has waived a preliminary hearing shall be required to provide a specimen of blood, saliva, or tissue within 14 days after such indictment or hearing at a collection site designated by the Illinois Department of State Police: (A) first degree murder; (B) home invasion; (C) predatory criminal sexual assault of a child; (D) aggravated criminal sexual assault; or (E) criminal sexual assault.")

Kansas: Kansas Stat. Ann. § 21-2511(e)(1) ("On and after January 1, 2007 through June 30, 2008, any adult arrested or charged or juvenile placed in custody for or charged with the commission or attempted commission of any person felony or drug severity level 1 or 2 felony shall be required to submit such [DNA] specimen or sample at the same time such person is fingerprinted pursuant to the booking procedure.")

Louisiana: 15 La. Rev. Stat. § 609(A)(1) ("A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.")

Maryland: Md. Pub. Saf. Code Ann. § 2–501et seq (providing for the collection of DNA samples from arrestees for crimes of violence and burglaries); see alsoMaryland Public Safety Section 2-504(a)(1)(i) (providing that a "DNA sample [is] collected either at the time of sentence or on intake to a correctional facility, if the individual is sentenced to a term of imprisonment")

Michigan: Michigan Comp. Laws § 750.520m(1)(a) (A person "arrested for a violent felony as that term is defined ... shall provide samples for chemical testing for DNA identification profiling or a determination of the sample's genetic markers and shall provide samples for chemical testing")

Minnesota: Minn. Stat. § 299C.105 (providing that law enforcement “agencies operating secure juvenile detention facilities shall take or cause to be taken biological specimens for the purpose of DNA analysis” of “persons who have appeared in court and have had a judicial probable cause determination on a charge of committing, or persons having been convicted of or attempting to commit”) certain specified offenses); see alsoMinn. Stat. § 609.3461 (1996) (renumbered Minn. Stat. § 609.117 (2002)) (requiring "a biological specimen for the purpose of DNA analysis" upon sentencing or "before completion of the person's term of imprisonment")

Missouri: Missouri Rev. Stat. § 650.055 ("fingerprint and blood or scientifically accepted biological sample collected for purposes of DNA profiling analysis" of persons "seventeen years of age or older and arrested for burglary in the first degree ..., or burglary in the second degree ..., or [certain] felony offense[s]")

New Jersey: N.J. Stat. Ann. § 53:1-20.20 ("Every person arrested for an offense enumerated in this subsection[s] [including aggravated sexual assault, sexual assault, murder, manslaughter, aggravated assault of the second degree, kidnapping, luring or enticing a child, engaging in sexual conduct which would impair or debauch the morals of a child] shall provide a DNA sample for purposes of DNA testing prior to the person's release from custody.")

New Mexico: New Mexico Stat. Ann. § 29-3-10(A) ("A person eighteen years of age or over who is arrested for the commission of a felony under the laws of this state or any other jurisdiction shall provide a DNA sample to jail or detention facility personnel upon booking.")

North Dakota: North Dakota Cent. Code § 31-13-03(1) ("An individual eighteen years of age or over who is arrested or summoned to appear before a magistrate for the commission of a felony shall provide to a law enforcement officer or correctional personnel at the time of the individual's arrest or appearance or upon booking into a correctional facility a sample of blood or other body fluids for DNA law enforcement identification purposes and inclusion in the law enforcement identification databases.")

Ohio: Ohio Senate Bill 77 (amending Ohio Rev. Code Ann. § 2901.07(B)(1)) ("On and after July 1, 2011, a person who is eighteen years of age or older and who is arrested on or after July 1, 2011, for a felony offense shall submit to a DNA specimen collection procedure administered by the head of the arresting law enforcement agency.")

Texas: Texas Government Code Ann. § 411.1471(b) ("A law enforcement agency arresting a defendant described by Subsection (a)(2), immediately after fingerprinting the defendant and at the same location as the fingerprinting occurs, shall require the defendant to provide one or more specimens for the purpose of creating a DNA record.")

Utah: Utah Senate Bill 277 (amending Utah Code Ann. § 53-10-403) (requiring the collection of a DNA specimen of a person booked for any violent crime at the time of booking if the person's DNA specimen is not already on file)

Vermont: Vermont Stat. Ann. § 20-1933 (requiring that: "A person for whom the court has determined at arraignment there is probable cause that the person has committed a felony in this state on or after July 1, 2011" shall "submit a DNA sample")

Virginia: Va. Code § 19.2-310.2:1 (“Every person arrested for the commission or attempted commission of” certain violent felonies, burglaries and offenses “shall have a sample of his saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.”)

Federal and state courts have split on the constitutionality of DNA collection from arrestees and others in the criminal justice system. The following courts have upheld the DNA collection procedures:

First Circuit: United States v. Weickert, 504 F.3d 1, 15 (1st Cir. 2007) ("After consideration of the totality of the circumstances present here, however, we conclude that neither the blood draw nor the subsequent creation of a DNA profile and the entry of that profile into CODIS constitutes an unreasonable search or seizure in violation of the Fourth Amendment.[")

Second Circuit: United States v. Amerson, 483 F. 3d 73, 78 (2d Cir.) ("We agree with appellants that the special-needs test remains the proper framework, in this Circuit, for analyzing the constitutionality of a DNA indexing statute when applied to probationers."), cert. denied, 552 U.S. 1042 (2007).

Third Circuit: United States v. Mitchell, 652 F.3d 387, 390 (3rd Cir. 2011) (“As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment.”), cert. denied, 566 U. S. _, 132 S.Ct. 1741 (2012)

Ninth Circuit: Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012), reh’g en banc granted, 686 F.3d 1121 (9th Cir. July 25, 2012); see alsoHaskell v. Brown Complaint (No. 09-4779) (NDCA); United States v. Pool, 09-015-EJG (EDCA May 27, 2009), aff’d, United States v. Pool, 621 F. 3d 1213, 1214-15 (9th Cir. 2010) (“We hold that where a court has determined that there is probable cause to believe that the defendant committed a felony, the government's interest in definitively determining the defendant's identity outweighs the defendant's privacy interest in giving a DNA sample as a condition of pre-trial release in cases in which the government's use of the DNA is limited to identification purposes and there is no indication that the government intends to use the information for any other purpose.”), reh’g granted, 646 F.3d 659 (9th Cir.), vacating as moot, 659 F.3d 761, 761-62 (9th Cir. 2011) (dismissing the appeal after being "advised that Pool has entered a guilty plea" and "there is no longer a live controversy, and the case is moot")

Arizona: see alsoMario W. v. Kaipio, 2012 WL 2401343 (Ariz. 2012) (holding that seizure of a juvenile’s buccal cells does not violate the Fourth Amendment but that extracting a DNA profile before the juvenile is convicted does)

Virginia: Anderson v. Commonwealth, 274 Va. 469, 650 S. E. 2d 702 (2007) (“we hold that the taking of Anderson's DNA sample upon arrest … pursuant to Code § 19.2-310.2:1 is analogous to the taking of a suspect's fingerprints upon arrest and was not an unlawful search under the Fourth Amendment”), cert. denied, 553 U. S. 1054 (2008); see alsoVirginia Attorney General Opinion No. 02-138 (May 13, 2003) (concluding that Va. Code § 19.2-310.2:1 “requires a person lawfully arrested for a violent felony to provide a saliva or tissue sample for DNA analysis. Reasonable force may be used, if necessary, to obtain a DNA sample from such an arrestee who refuses to comply with the applicable DNA statutes”)

Some cases have addressed the collection of DNA samples in other circumstances under the criminal justice process, including:

Western District of New York: United States v. Thomas, No. 10-CR-6172CJS (WDNY Feb. 14, 2011) (concluding that the "collection of a DNA sample from a person charged with, but not convicted of, a felony is reasonable under the Fourth Amendment")

A few courts have found that the Fourth Amendment is violated by collection of a DNA sample from arrestees:

California: People v. Buza, 197 Cal. App. 4th 1424, 1461, 129 Cal. Rptr. 3d 753 (Cal. Ct. App. 2011) ("we conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution"), cert. granted, 262 P.3d 854 (Cal. 2011)

Maryland: King v. State, 425 Md.550, 42 A.3d 549, 552 (2012) ("We hold that § 2-504(3) of the Maryland DNA Collection Act, which allows DNA collection from persons arrested, but not yet convicted, for crimes of violence an d burglary, is unconstitutional, under the Fourth Amendment totality of the circumstances balancing test, as applied to the relevant facts of this case because King’s expectation of privacy is greater than the State’s purported interest in using King’s DN A to identify him for purposes of his 10 April 2009 arrest on the assault charges."), cert. granted, Maryland v. King (No. 12-207) (Nov. 9, 2012)

Minnesota: In the Matter of the Welfare of: C.T.L., Minnesota Court of Appeals, A06-874, File No. J4-05-52203 (Oct. 10, 2006) (“Because Minn. Stat. § 299C.105, subd. 1(a)(1) and (3) (Supp. 2005), direct law-enforcement personnel to conduct searches without first obtaining a search warrant based on a neutral and detached magistrate’s determination that there is a fair probability that the search will produce contraband or evidence of a crime, and because the privacy interest of a person who has been charged with a criminal offense, but who has not been convicted, is not outweighed by the state’s interest in taking a biological specimen from the person for the purpose of DNA analysis, the portions of Minn. Stat. § 299C.105, subd. 1(a)(1) and (3), that direct law-enforcement personnel to take a biological specimen from a person who has been charged but not convicted violate the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution.”)

In Maryland v. King (No. 12-207) (Nov. 9, 2012), the Supreme Court will have the opportunity to resolve this court division on the collection of DNA samples from arrestees under the Fourth Amendment and address the availability of this evidence for appropriate cases.

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